Original Jurisdiction

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

Article III, Section 2, Clause 2

The Supreme Court's original jurisdiction is limited to a narrow but important range of cases. The grant of appellate jurisdiction under Article III is far broader, although under the Appellate Jurisdiction, Congress has at least some discretion to modify it. The Court has been assiduous in protecting the Constitution's core grant of original jurisdiction from congressional expansion. The Court explicitly declared in Marbury v. Madison (1803) that Congress cannot add to the Supreme Court's original jurisdiction. Under Section 13 of the Judiciary Act of 1789, Congress had granted the Court mandamus power (the power to order lower courts or executive officials to perform duties required by law). In Marbury, Chief Justice John Marshall held that the mandamus power as applied to executive officials was actually a grant of original jurisdiction, and that Congress could not constitutionally expand the original jurisdiction of the Supreme Court. Writing for the Court, the Chief Justice declared Section 13 unconstitutional and denied the relief sought. Marshall's carefully crafted opinion reinforced the significance of original jurisdiction in two ways: (1) by limiting its scope to the categories of cases contained in the text; and, as a consequence, (2) by shifting its focus from executive matters to suits between states.

The Original Jurisdiction Clause has both theoretical and practical importance. Although Marshall's opinion emphasized the principle of textual interpretation, it also made practical sense that Article III should be read to limit the power of Congress to add to the Court's original jurisdiction. If Congress could have expanded the Court's original docket, citizens would have been forced to litigate in the national capital, which was often inconvenient and distant. But even as narrowly written and construed, in state-versus-state cases original jurisdiction still played an indispensable role in eliminating the bias and parochialism of state courts and lower federal courts (where judges were likely to be drawn from the same pool of local lawyers). The need for original federal power in state-versus-state cases had been a concern of the Constitution's drafters: "Whatever practices may have a tendency to disturb the harmony between the States are proper objects of federal superintendence and control." The Federalist No. 80.

While Congress cannot add to the Supreme Court's original jurisdiction, the Court has accepted a reduction of the power through Congress's creation of concurrent jurisdiction with lower federal courts over some kinds of original matters cases (suits against ambassadors and consuls and suits between the United States and a state, for example). Parochial biases are less prevalent in these cases and, in any event, when filed in the lower federal courts, these cases can later be transferred to the Court's appellate docket. The current jurisdictional statute, 28 U.S.C. ยง 1251, makes controversies between two or more states exclusive and provides for concurrent jurisdiction over all other categories of original cases.

From the beginning, the most important kinds of suits between states involved disputes over boundaries. These were precisely the situations where the forces of provincialism and self-interest were most likely to compromise a state or lower federal court. Between 1790 and 1900, the only suits between states the Court heard on its original docket concerned boundary disputes. By the twentieth century, the category of original disputes began to include other important matters, such as water-rights cases and Commerce Clause claims (related to the use of state economic, regulatory, or tax powers). These kinds of cases continue to this day. See, e.g., Maryland v. Louisiana (1981), which deals with Louisiana's severance tax on natural gas. On occasion, when purely legal and urgent constitutional challenges are raised, the Court has also permitted suits to be filed on an original basis by states against the United States. See South Carolina v. Katzenbach (1966) (the Voting Rights Act of 1964).

Original cases are not heard as of right before the Supreme Court even though its jurisdiction is exclusive. Original cases are commenced by a petition for leave to file a complaint. Such petitions are frequently denied, sometimes because the Court believes that a matter between states is too trivial (e.g., whether state universities breached a contract to play football) or, conversely, when the Court considers that the matters sought to be reviewed are too broad or unmanageable (e.g., issues of interstate water or air pollution) or simply because the Court is not ready to hear the matter.

Once the Court grants the states' petitions to file a complaint, it usually appoints a Special Master to make factual and legal recommendations. The Special Master, in turn, holds hearings and takes testimony, subject in a general way to the Federal Rules of Evidence. Unlike appeals of district court decisions under the Federal Rules of Civil Procedure, the Master is given no formal deference on findings of fact by the Supreme Court, although such findings are often accepted by the Court. The parties also present briefs, arguments, and proposed recommendations, after which the Special Master issues a final report. The parties then can take exceptions to that report to the Supreme Court, where it is briefed and argued and proceeds much like a traditional appellate or certiorari case.

There have been fewer than two hundred state-versus-state original cases in the history of the Republic, less than one per year of constitutional life. There have been only two original cases under the "affecting Ambassadors" section of the clause. Despite these relatively modest numbers, original jurisdiction continues to serve an indispensable purpose in resolving matters of high moment between states. No forum other than the Supreme Court can act with the authority and dignity necessary to resolve what are in effect diplomatic encounters between contending sovereigns under our constitutional system.

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Paul R. Verkuil
Professor of Law
Chairman of the Administrative Conference of the United States
Yeshiva University, Benjamin N. Cardozo School of Law